Employment Law Newsletter

Title VII of the Civil Rights Act of 1964 protects individuals from unlawful employment practices of an employer based on that individual’s race, color, religion, sex, or national origin. In recent years, the U.S. Equal Employment Opportunity Commission (“EEOC”) has attempted to solidify its stance, that Title VII prohibits discrimination based on sexual orientation and/or gender identity. In July 2015, the EEOC determined in Baldwin v. Dep’t of Transportation, that Title VII prohibition against sex discrimination includes discrimination based on sexual orientation. The reasoning:

1. Sexual orientation discrimination necessarily involves treating workers less favorably because of their sex, because sexual orientation, as a concept, cannot be understood without reference to sex;
2. Sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and
3. Sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.

On March 1, 2016, the EEOC went a step further and announced that it filed its first sex discrimination cases based on sexual orientation. The two cases were filed in the Western District of Pennsylvania against Scott Medical Health Center, and in the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA. In both cases, the EEOC is seeking injunctive relief and compensatory and punitive damages.

In the Scott Medical Health Center case, the EEOC asserts that a gay man was the subject of harassment because of his sexual orientation. The employee’s manager repeatedly referred to him using anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee complained to the clinic director, the director merely stated that the manager was “just doing his job,” and refused to stop the harassment. After several weeks of continued harassment, the employee quit rather than be subjected to continued harassment.

In the IFCO Systems suit, the EEOC asserts that a lesbian forklift operator was harassed by her supervisor because of her sexual orientation. The employee’s supervisor made comments about the employee’s sexual orientation and appearance, such as “I want to turn you back into a woman,” “I want you to like men again,” and “you would look good in a dress,” among other comments. At one point the supervisor’s harassment went from verbal to non-verbal when the supervisor blew the employee a kiss, then circled his tongue at her in a suggestive manner. The employee complained to management, called the employee hotline about the harassment and the IFCO fired the lesbian employee a few days later.

The EEOC’s General Counsel David Lopez stated that the filing of these two suits was an example of the EEOC continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation. Lopez concluded, “While some federal courts have begun to recognize this right until Title VII, it is critical that all courts do so.”

The take away for employers is that all employees should be treated the same regardless of gender or sexual orientation. Employers should also be aware that “gender stereotyping,” such as requiring certain styles of dress for men and women, can be the basis for a gender discrimination lawsuit. This particular issue has been a hot button issue when an employee has gone through a sex change or when an employee self-identifies as a gender that is different than their anatomical sex. Employers should update their harassment policies if necessary.

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